Tougher Sex Offender Laws Force Some Parolees Into Homelessness

Audio

Aired 9/3/10

Homelessness awaits some sex offenders after release from prison. Jessica's law already imposes tougher restrictions and Chelsea's Law waits in the wings for the Governor Schwarzenegger's signature. We'll discuss the possible unintended consequences of stricter limits on paroled offenders.

GLORIA PENNER (Host): Well, I’m Gloria Penner and I’m joined by the editors at the roundtable These Days in San Diego. Today we wait to see if the governor will sign Chelsea’s Law to impose stricter penalties on sex offenders, we’ll talk about other tough sanctions that drive some offenders into homelessness. We’ll also look at the prospect of loading up our county’s jail population with prisoners from the state, and the local economy, stagnant for some and punishing for others. The editors with me today are David Rolland, editor of San Diego CityBeat. Good morning, David. Glad you could be here.

DAVID ROLLAND (Editor, San Diego CityBeat): I’m happy to be here. Thanks, Gloria.

PENNER: And Scott Lewis, CEO of voiceofsandiego.org. Scott, welcome back to Editors Roundtable.

SCOTT LEWIS (CEO, voiceofsandiego.org): Well, thank you, Gloria.

PENNER: And our number, if you’d like to join the conversation is—not if but when you’d like to join the conversation—is 1-888-895-5727, 895-KPBS. Governor Schwarzenegger has legislation waiting on his desk for his signature which would toughen penalties against sex offenders. It’s called Chelsea’s Law after Chelsea King, a San Diego teenager who was raped and killed by convicted sex offender John Gardner. So, David, let’s start out a little bit with Chelsea's Law just to give background. How would Chelsea's Law toughen those penalties?

ROLLAND: Well, there’s a whole menu of crimes against mostly kids that would draw much, much harsher penalties. So there are, you know, one strike laws for basically, essentially, the worst of the worst characters out there who victimize children.

PENNER: Now we already had a law on the books named after a teenager. Now it’s called – it’s Jessica’s Law.

ROLLAND: Umm-hmm.

PENNER: How was Jessica’s Law different from what Chelsea's Law would be?

ROLLAND: Well, I got to give it up for Nathan Fletcher because he, through his whole process—Nathan Fletcher is the Assembly member who worked with the King family and the Dubois family on Chelsea's Law—and he learned it – he appeared to learn a great deal through the process of crafting that law and what he learned was that where Jessica’s Law, you know, went wrong. And in this week’s CityBeat, we call our story “The Unintended Consequence,” and that unintended consequence of Jessica’s Law was that it banned parolees who are released from prison on sex offenses from living within 2000 feet of schools or parks. And so the unintended consequence there was that there’s really no place for these people to live in urban areas. So the result has been an explosion in convicted sex offenders who are on parole who are homeless. It’s basically gone up 6,000% since the law went into effect in 2006. And what Chelsea's Law – Chelsea's Law doesn’t get bogged down in those residency restrictions, it targets where people can hang out if they’re on parole, where they can spend time while they’re awake, which is more of an issue than where they’re sleeping.

PENNER: More of an issue in what regard? I’m sticking with you just for a moment more, David.

ROLLAND: Well, they tend – I think that they’re – they pose more a threat to other people when they’re awake rather than when they’re asleep. So it’s where they spend their time during the day that we need to be concerned about, not where they’re sleeping.

PENNER: Okay, I lied. I’m going to ask you one more question.

ROLLAND: Okay.

PENNER: How many are we really talking about in San Diego County that might be considered homeless because of Jessica’s Law? Just a ballpark figure.

ROLLAND: Well, if there are – the only thing I can do is extrapolate down from, you know, a number of 5,000 statewide who have reported that they’re homeless because of the residency restrictions. So I guess you can – I don’t know, maybe we can, together, extrapolate that down to San Diego County. I’m not even – I’m not sure of the numbers but I would imagine, you know, it’s in the many hundreds.

PENNER: Okay, well, don’t ask me to do math on the air. I’ve really gotten caught in the past on that. So I guess the question is, so what, John? So what if convicted sex offenders who are on parole are homeless? Think of all the other thousands of people who are homeless.

WARREN: Well, for one thing, they represent an element of the population that we really want to monitor and know where they are. When they have a residential facility in terms of parole or probation, people monitoring them, it’s easier to check on them. When they’re homeless, they’re just wandering all over the place and it has been estimated that this in itself is the major unintended consequences from Jessica’s Law in that, as David pointed out, they can hang out in parks during the day. They don’t sleep in parks but they were able to be near parks. Now, under Chelsea's Law, there’s a change so that they cannot go near those parks and that kind of closes the loophole but it doesn’t do much for controlling the number of people. And there’s a strong feeling that residency influences where people commit crimes. And so if they are forced, like in San Francisco, there’s no place to live, they’re under the bridge, they’re wandering all over the place, there’s no way to have any control.

ROLLAND: I’d just like to add one more thing to what John says. He’s absolutely right and the – But in addition, homelessness creates instability in people’s lives and that instability, experts have argued, that instability will make them more prone to behavior that we don’t want to see.

PENNER: But Jessica’s Law is already on the books. Or let me ask our listeners about this. Okay, so you’ve heard the discussion thus far. Jessica’s Law, unintended consequences contributes to homelessness among convicted sex offenders who have been paroled. But it is on the law – on the books and our telephone number is 1-888-895-5727, 895-KPBS. Do you feel that that law should be looked at again, perhaps amended, and perhaps adjusted so that homelessness is not part of the additional problem that’s imposed? 1-888-895-5727, 895-KPBS. David, you wanted to say one more thing.

ROLLAND: Yeah. I was just informed by my associate editor Kelly Davis, who’s our expert on sex offenders, that there are an estimated 150 parolees, homeless parolees, in San Diego County.

PENNER: Okay, that’s a good number to know and, as John says, they’re basically unmonitored. But the other part of this is, Scott Lewis, when I look at it is has Jessica’s Law been effective? Should it be tampered with? Are we happy with it?

LEWIS: Well, Dave, correct me if I’m wrong but didn’t – aren’t – isn’t it being challenged or selectively enforced by agencies that are worried about this very issue or…?

ROLLAND: It is. The policy of the state Department of Corrections is to enforce the residency restrictions. There was a legal challenge that was ruled upon earlier this year in February. The challenge was that this law was being enforced retroactively because people would come out of prison and they would violate their parole by doing something different, a non-sex offense, but then when they came out of prison from that violation, their – they were being – the residency restrictions for sex offenders were being enforced against them and so there were parolees who challenged that law. It was ruled, the California Supreme Court ruled against them, that it did not violate state or federal law on retroactivity. But what’s happened now, what the court did say was it allowed individuals to petition the court to – with their individual circumstances saying there is no place for me to live. And so in – Actually, in LA County, there have been – the courts have been inundated by lawyers representing parolees that said – that are petitioning through that process. And this week, an LA County, the presiding judge in LA County said, okay, we get it. There are so many of these petitioners that we are just going to blanket rule that the residency restrictions will not apply to parolees in LA County until we can sort this out because there are ongoing challenges to the residency restrictions.

PENNER: So there’s a big change taking place already in Los Angeles County. All right, let’s turn to our telephones now and hear what we have from Ron in Tierrasanta. Ron, you’re on with the editors.

RON (Caller, Tierrasanta): Good morning, and thank you. John Warren just spoke of unintended consequences of some of this legislation. I believe the unintended consequence of Chelsea's Law is going to be a lot more dead children because you have taken away the motivation to leave the victim alive. If the individual, the rapist, knows that if he leaves the child alive to help the police get him, to identify him in court, he’ll face life without parole. If he kills his victim, he’ll face life without parole. Why on earth would he leave that child alive? The unintended consequence of this law is going to be more dead children.

PENNER: Thank you, Ron. So there’s another unintended consequence. This one, if Chelsea's Law, which has not yet been signed into law by the governor but has been passed by both houses of our state legislature. John.

WARREN: I have seen nothing to suggest that this was discussed in the course of all of the rush with this. I mean, we do have a statement that was made by one of the candidates for attorney general that suggests that in order to get such an act passed affecting children just name it after a female, and that upset people. So I think that he could be right, that we have not looked at it closely enough.

PENNER: Okay, well, and Scott?

LEWIS: Well, I don’t know that a violent sex offender is really thinking rationally enough to go through the cost benefit analysis about whether they should leave the child alive or not. I think that, you know, there is probably something to think about with that. We really need to – You said, so what? You know, I think a lot of people read this fantastic story that Kelly Davis did in CityBeat and looked at it and said, well, you know, I, you know, am very sorry that your – you, Mr. Rapist, have to deal with this problem. But I think that, as with all issues of homelessness and – there are consequences to all of us when you have a group like that that is not being – You know, they have to go charge their monitoring devices in a public setting. They have to go, and where’s the public place that you’re going to charge your monitoring device? Well, at a library or at someplace that allows you to be around people that maybe we don’t want them around. There are things, you know, with regard to public health and hygiene that we need to deal with when we just force people to be homeless. So I think that the advocates for these people need to make the argument not necessarily that we should feel bad for these people but that as a community as a whole, we need to keep in mind the consequences to all of us when we let – when we – You know, we’re already dealing with people who don’t choose to be, you know, homeless. Why would we force more people into that situation?

PENNER: 1-888-895-5727, 895-KPBS. We are discussing the unintended consequences of a law that’s already on the books, Jessica’s Law and one of them appears to be that because of residency restrictions, sex offenders, convicted sex offenders, who are now on parole have become homeless. What does that mean to you? Are you concerned about that? I threw out the ‘so what’ before. Does ‘so what’ apply to the way you feel about this or do you think that it’s a real issue? Again, 1-888-895-5727. So one more question on the unintended consequences, Scott. Since there are many who do believe sex offenders should suffer, what motivation would legislators who theoretically are politically motivated by what their constituents want, what motivation would they have to amend the law?

LEWIS: Well, if it’s true, as Dave pointed out, that leaving these people homeless causes an instability that might make them even more of a threat, well, then we can pull the threat angle out for this, too. We can say, look, we have to change this, we have to tweak this. I don’t know how you fix it. If you want to try to keep people from living within a certain range of schools and parks, then this is the consequence of that decision. Perhaps there’s some sort of, you know, I don’t know, ghetto we can put them in or something, I don’t – It’s very difficult to solve the residency issue without dealing with this consequence. So we have to think more rationally about it and it sounds like Nathan Fletcher, among others, are starting to realize that it’s better to control the behavior rather than their living space.

PENNER: Okay, we’re going to continue this discussion. We’re going to take all your calls, we’re going to try to take them, right after the break. This is a very short break so stick with us as we discuss the unintended consequences of Jessica’s Law and, potentially, Chelsea's Law. I’m Gloria Penner. This is the Editors Roundtable.

PENNER: This is the Editors Roundtable. I’m Gloria Penner. And we’re in the middle of a discussion about the unintended consequences of Jessica’s Law that’s already part of the law, and this was raised in an article by Kelly Davis on San Diego CityBeat this week actually. I picked it up in Wednesday’s paper, I think it was. And it’s really sort of motivated a very vigorous discussion here about whether, when these laws are passed, whether we take a look at some of the consequences that might come forth that are unintended. For example, in the case of Jessica’s Law, homelessness among sex offenders who have been convicted then have been released on parole and are not allowed to live within 2000 feet of most civilized places and so they’re homeless. And, you know, how does – how do we feel about that? Is that okay or isn’t it? And David actually has an update. He had spoken earlier about an LA Superior Court judge who had said, okay, I’m going to stay this law because it’s true, they are homeless and we need for that not to happen. And then something happened after that. What was it, David?

ROLLAND: Yeah, I didn’t get to that part, which is the state, the state Department of Corrections asked the presiding judge in LA County to delay his ruling essentially until next week when the attorney general can make the case that he ruled in error. So as of now, the laws – the residency restrictions still apply to people, to parolees in LA County. And I’ll also add that these challenges are also happening locally here, that there’s a particular public defender who was featured in Kelly’s story, Laura Arnold, who is going around and trying to help people whose circumstances, you know, she’s not just, you know, arguing for everybody, you know, so it depends on what they did and what their circumstances are but she will – she’s arguing those cases here. I’ll also say that while I was very nice to Nathan Fletcher and Chelsea's Law, it’s important to note that without changes to Jessica’s Law, Chelsea's Law increases parole terms so – and in some cases lifetime parole. So we’re talking, in these cases, unless you change Jessica’s Law, Chelsea's Law will basically – could basically mean some people convicted of sex crimes will be homeless for life.

PENNER: For life because they’ll be on parole for life.

ROLLAND: That’s right.

PENNER: Okay. Got it. All right, let’s go to the phones now and hear from Chris who is on the I-15 or the I-5. Wherever you are, Chris, let’s hear from you.

CHRIS (Caller, Mobile): Hi, how you doing?

PENNER: Okay. Please go ahead.

CHRIS: Well, you know, I think another unintended consequence is most of the conversation is about law, so we have these people making these laws, getting the passion, then they’re going to sleep. I think we need to own this responsibility. We’re putting the responsibility on these people who have already broken the law to now, with no intervention, all of a sudden obey the law. In the Marine Corps, when Marines got in trouble, they would have to check in periodically because they was (sic) on restriction. And these people should be on some type of restriction and there’s studies that show that they never change, so this is a lifelong process. We need to get the infrastructure in place, get the resources in place, and start monitoring these people or continue to expect the same outcome.

PENNER: Okay, thank you very much, Chris. I’m going to hang onto your comment and we’re going to hear from Steve in La Jolla, and try to get a couple of calls and then we’ll comment on all the calls. Steve, you’re on with the editors. Welcome.

STEVE (Caller, La Jolla): Thank you. This is with reference to your earlier caller who said the unintended consequence of Chelsea's Law would be to increase the incentives for sex offenders to kill their victims. I’d like to point out that John Albert Gardner did kill his victim and also if you assume a rational sex offender who’s making a calculated decision about whether to commit a crime and follow-up with a killing possibly, then you would have to assume that they would also consider the seriousness of the sentencing that might ensue if they’re caught and convicted. So perhaps if the – if Gardner had faced a more severe prison term, he would’ve reconsidered his decision. So it’s not clear to me that Chelsea's Law is going to necessarily increase incentives when we already see someone like John Albert Gardner deciding to go ahead and kill his victim.

PENNER: Right, and, you know, you wonder, Lee (sic), whether in the act in which he was involved, whether he really was thinking rationally enough to think about, you know, the future possibilities if he killed or didn’t kill. What do you think, Lee? Are you still there? No?

STEVE: Steve?

PENNER: Oh, I’m sorry. It’s Steve. Forgive me, Steve, I…

STEVE: Well, yeah, I guess the way I look at it is maybe some sex offenders are rational and some aren’t.

PENNER: Ah.

STEVE: The ones who aren’t rational, you don’t want to have them out there at all, all right? If you could separate those who are – who don’t make calculated decisions from those who do, you want to keep those who don’t make calculated decisions away from children period. Those who might make calculated decisions, you want to create incentives that reduce the severity of the crimes if they decide to commit them. So the question is if I make the punishment more stiff, if they say life in prison as opposed to the possibly of getting out before their life term is up, how’s that going to affect their decision? It’s not clear to me that it’s going to affect it one way or the other.

PENNER: Okay, well, thank you very much. A very, very thoughtful response. And I think that’s all the time that we have so let’s get some comments from our editors on this. Let’s start with, Scott, and what Steve had to say.

LEWIS: Well, you know, yeah, I think he’s exactly right. If we look at the – Well, I mean, on the point of, you know, people – I don’t believe that these people who are deciding, you know, to do these kinds of acts are thinking rationally or going through the policies in their mind. I do think they probably are thinking that they better – there’s probably an essence among many of them that they better not leave any witnesses just like in any, you know, sort of these crime situations. And so, you know, that’s going to lead them to certain decisions. But I don’t think that Chelsea's Law’s nuances or Jessica’s Law’s nuances are going through their minds at that point.

PENNER: David, what about what Chris had to say about, you know, keep these people restricted.

ROLLAND: Yeah, no, I’m glad you asked because I wanted to comment on Chris’ comment. I appreciated it and I think he’s right. He was talking about – What his comment brought to mind the so-called containment model, which is something that the statewide Sex Offender Management Board has pushed for and that is a combination of treatment and monitoring so it’s not just a hammer, it’s also, you know, like Chris commented, trying to change somebody’s behavior and not just expecting a different outcome without helping cause a different outcome.

PENNER: Right. And final comment, John.

WARREN: Well, I think that the caller made – the callers made very important points in terms of whether or not people are going to be rational but I think that we have so many laws already on the books and procedures, that when we started the process with Chelsea's Law we recognized that we were not taking full advantage of it because we were understaffed in terms of monitors, in terms of parole, in terms of evaluation and all the things that exist. So it does not make sense to add laws that we’re not going to fully fund existing laws that are going to work with the new laws. And I think that’s a real issue right now, especially with the budget that we have.

PENNER: Well, that’s a good, logical answer, John, and, you know, we wonder how much logic is being thought about these days in Sacramento. I want to thank Kelly Davis and San Diego CityBeat for a very thought provoking article and thank you for being with us, David.